Self-Narrative and Legal Narrative

• This is an interesting point of departure. I find myself immediately doubtful. All around me I see human beings who not only leave all the probing questions about their feelings and behavior unresolved, they leave them entirely unasked.

In order to explain behaviors and feelings that are often very challenging to explain, people create "explanatory devices. " These devices vary; some may have more or less basis in reality than others, and may differ in their predictive power. Similarly, in the study and practice of law, scholars and practitioners invoke legal explanatory devices to explain how the legal system works. Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” in Courts on Trial are two such attempts. The use of legal reasoning is a convincing (or not) narrative that provides justification for legal decisions, while the court’s procedures for evidence and testimony provide a narrative that explains what happened in well-defined boundaries. These explanatory devices are similar to the individual self-narratives we use to render our own emotional landscapes intelligible.

• This is the crucial claim. It's a claim of "similarity," which is weak. Whether two concepts are similar is in the eye of the beholder. More importantly, similarity has no value in logical argument: if A and B are similar to an extent, that tells you nothing about A's relevance in explaining anything about B, because the similarity may have nothing to do with the property of B being explained. Like Elyse's essay on repression, this draft now depends on the "similarity" between an intrapsychic phenomenon and an interpsychic social pattern. Jerome Frank's Law and the Modern Mind, a brilliant pièce de provocation presented in 1927 the classic forensic use of the analogy between intrapsychic rationalization and judicial reason-giving, arguing quite explicitly that judging is usually performed neurotically, as is believing in judging.

• With those words, a trick is performed. Similarity is no basis for argument. But these two words use a claim of similarity as though it were a claim of equality. When two things are equal, evidence about the properties of one is evidence about the properties of the other. Oranges are similar to apples for some purposes. If they were equal, you could prove orange peels edible by eating an apple. Here you used a conjunction to achieve a major league act of smuggling. There's no just-as-ness about it.

individuals can benefit from constructing narratives about themselves, people as a collective can benefit from creating meaningful narratives about the way that legal institutions work. Its nether comforting, nor productive, for humans to exist in a state of uncertainty as to the operation of the law. For example, with criminal punishment, people value the ability to predict when and to what extent they will be subject to penalty. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness will inevitably follow.

• Maybe, maybe not. I do not think you could safely characterize the broad sweep of available historical evidence this way. Inevitability is a particularly strong claim, destroyed by a single contrary instance. Are you really ready to defend every single submission of a counter-example, or can we agree that you've got a second smuggle caught in the floodlights here?

Cohen's transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes. While debate certainly centers on invented concepts, like the personhood of corporations, the concepts can go a long way towards providing a concrete, relatively smooth ground for navigating the rough complexities of real-world cases. Although it appears to take the focus off of the real world, in fact transcendental nonsense helps provide a consistent framework for judges to make ethical decisions. Justice comes from the judge's mind and sense of ethics, but consistency and thus dependability must be rooted in something other than individual people. Transcendental nonsense, then, does for judicial reasoning what composing self-narratives does for emotional sanity: it provides a structure, through which the substance can be utilized effectively.

• This defense of formalism doesn't cohere logically. How a debate centered on invented concepts can provide a consistent framework to make ethical decisions depends, of course, on what you mean by making ethical decisions. But I consider you to have a fairly difficult job demonstrating for many plausible meanings of "making ethical decisions" that "debating invented concepts" could possibly be any help. In the end, you haven't strengthened the argument at all. It's still just an assertion: formalism is good because stability is important.

• But this is inconsistent with the prior graf. If merely invented quantities are enough with which to make suitable ethical decisions, why should we be "improving" the narratives of imaginary formal quantities we use? In what way do purely imaginary narratives unrelated to reality differ for better or worse in their helpfulness? About legal formalisms, given your argument above, one could say what Gibbon says of all the religions of the ancient Mediterranean: that they were considered by the people to be equally true, by the philosophers to be equally false, and by the magistrates to be equally useful.

• Your intention with this edit was plainly to give a clear line to the argument, and to straighten out some particular snarls to which I had called attention. But once you did so you had the real bones of the problem to deal with. This was useful, it showed clearly where the fundamental problems were, which is one of the jobs of the editor. But then you had little to fall back on in solving those problems, and you were more conspicuous in your smuggling once you had cleared the ground around the border.